Supreme Court Roundup; Justices Say Starr Broke Hubbell Immunity Deal

The Supreme Court ruled today that the office of Kenneth W. Starr, the Whitewater independent counsel, violated an agreement with Webster L. Hubbell by forcing him to produce thousands of pages of personal financial records under a grant of immunity and then using those records to indict him on charges of tax evasion.

The 8-to-1 decision affirmed a ruling last year by the federal appeals court here, which declared that it would find the indictment fatally flawed unless the independent counsel's office could prove that it knew in advance, when it issued a far-reaching subpoena for Mr. Hubbell's financial information, that the documents existed and that Mr. Hubbell had them. Mr. Starr acknowledged that he could not meet that standard and appealed the decision.

The result of the ruling today was to dismiss a conditional guilty plea agreement that Mr. Hubbell, the former associate attorney general and once a close friend of the Clintons, entered into with Mr. Starr's office. Under the agreement, Mr. Hubbell pleaded guilty to a misdemeanor tax charge and received no incarceration and no fine. The agreement provided that the guilty plea would be erased if the independent counsel's office did not win the appeal.

Robert W. Ray, Mr. Starr's successor, said today that he would soon file a motion to vacate the guilty plea. Mr. Ray said he was ''pleased that the Supreme Court has clarified this difficult area of the law.'' He noted that a guilty plea Mr. Hubbell entered at the same time last year to a felony charge of concealing information from federal bank regulators was not affected by the ruling today.

While the stakes were not particularly high for Mr. Hubbell, who served 17 months in prison for financial violations involving his former law firm and clients, the decision clarified a principle of the law of immunity that could be important in other cases.

The question was whether, and under what circumstances, the fact of producing documents required under a grant of immunity is itself a ''testimonial act,'' protected by the Fifth Amendment's guarantee against compelled self-incrimination as well as by the immunity statute. The contents of voluntarily prepared documents are not protected, so the focus in this case was on the act of production itself.

Writing for the court, Justice John Paul Stevens said that given the breadth of the subpoena -- essentially all of Mr. Hubbell's financial records for the previous three years -- the act of producing the documents was more than a ''mere physical act.'' ''The collection and production of the materials demanded was tantamount,'' he said, ''to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions.''

Justice Stevens noted that Judge James Robertson of Federal District Court, who dismissed the indictment in 1998, had called the subpoena ''the quintessential fishing expedition.'' The subpoena ''did produce a fish,'' Justice Stevens said, ''but not the one that the independent counsel expected to hook.'' While the purpose of the subpoena was to aid Mr. Starr's investigation of a possible obstruction of justice involving Mr. Hubbell's sources of income after he left the Justice Department, no such charge was ever brought. Instead, the independent counsel charged Mr. Hubbell with evading taxes on the income that the documents revealed.

The independent counsel ''has not shown that it had any prior knowledge of either the existence or the whereabouts of the 13,120 pages of documents ultimately produced'' by Mr. Hubbell, Justice Stevens said.

In a concurring opinion, Justices Clarence Thomas and Antonin Scalia took an even broader view of the Fifth Amendment privilege, saying that in the view of the founding fathers, the protection against compelled self-incrimination applied not only to testimony but also to ''any incriminating evidence.'' Had that been the rule, the court would not have had to ask in this case, United States v. Hubbell, No. 99-166, whether Mr. Hubbell's response to the subpoena was testimonial in nature.

Chief Justice William H. Rehnquist noted his dissent, but did not file an opinion to explain his reasons.

There were also these other developments on a busy day at the court, which has 17 decisions remaining in its 1999-2000 term.

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The court unanimously rejected the Justice Department's approach to a law that imposes a mandatory 30-year sentence for using a machine gun in connection with a crime of violence. Under the government's view, the law simply provides an enhanced sentence, which is to be imposed by the trial judge.

But in an opinion by Justice Stephen G. Breyer, the court found that in this 1988 law, Congress intended to make the use of a machine gun not just a sentencing factor, but a ''separate substantive crime,'' to be charged separately and proven to a jury. The decision overturned a ruling by the United States Court of Appeals for the Fifth Circuit, in New Orleans.

This case, Castillo v. United States, No. 99-658, was the latest of several recent cases in which the court has wrestled with the distinction between a sentence enhancement and an element of the offense. The decision vacated 30-year sentences given to four members of the Branch Davidians, who were convicted of voluntary manslaughter in the deaths of four federal agents in the 1993 raid on the group's compound near Waco, Tex. The decision also vacated the 10-year sentence imposed under the same law on a fifth member of the group, who used a grenade.

Social Security Appeals

The court handed the government another loss in rejecting the Social Security Administration's view that a person making a claim for benefits cannot raise in court any issue that he had not raised in an administrative appeal to the Social Security Appeals Council. The vote was 5 to 4, overturning another Fifth Circuit opinion.

Writing for the majority, Justice Thomas said that although the normal rule is to require claimants to raise all issues in the administrative process before going to court, that rule should not apply to hearings such as those before the Social Security board that are not trial-like in nature. Most Social Security claimants do not have lawyers and the appeals council itself is supposed to investigate all the issues, he said.

In a dissenting opinion, Justice Breyer said the claimant was represented by a lawyer and that the requirement to exhaust all issues before the board was important in a process that handles more than 100,000 claims a year. Justices Stevens, Sandra Day O'Connor, David H. Souter and Ruth Bader Ginsburg joined the majority in Sims v. Apfel, No. 98-9537. Chief Justice Rehnquist and Justices Scalia and Anthony M. Kennedy joined the dissent.

Texas Death Penalty

The court unanimously vacated a death sentence issued by a Texas court to an Argentine man convicted of a murder committed during a robbery. Under Texas law, the jury deciding on a sentence of death is to consider whether the defendant presents ''a continuing threat to society,'' and in this case, a clinical psychologist who testified as the prosecution's expert witness told the jurors they could take into account the fact that Hispanics were ''over-represented'' in prison compared to their population and might therefore be considered dangerous.

The lawyer for the defendant, Victor Hugo Saldano, did not object to this testimony, and the Texas Court of Criminal Appeals found that the failure to object essentially forfeited the right to appeal.

Mr. Saldano's appeal to the Supreme Court drew support from the government of Argentina and civil rights groups, arguing that ethnicity had been improperly injected into the sentencing process. The Texas attorney general, John Cornyn, then filed a statement with the court, agreeing that the sentencing hearing had violated the defendant's rights to equal protection and due process. He asked the justices to vacate the sentence so Mr. Saldano could receive a new hearing ''in which race is not considered.'' The justices did so today in Saldano v. Texas, No. 99-8119, without further comment.

Telephone Rates

In a case of considerable importance in the telecommunications industry, the court agreed over the government's objection to hear a challenge by the GTE Corporation to the rate-setting methodology by which carriers are required to subsidize service at low rates for poorly served areas. The so-called universal service program, or e-rate, was established by the Telecommunications Act of 1996. The case, GTE Corp. v. Federal Communications Commission, No. 99-1244, is an appeal from a ruling by the Fifth Circuit that upheld the program.